43 S.C. 318 | S.C. | 1895
The opinion of the court was delivered by
The controversy presented for the determination of the court in this case, arises upon a demurrer to the complaint, upon the ground that the facts therein stated are not sufficient to constitute a cause of action. The case was referred to the master to hear and determine all of the issues therein, and, at the first reference, before any testimony was offered, the defendants interposed a demurrer based upon the several grounds stated in the master’s report, all of which were overruled except the fourth, to wit: that the contract was an illegal one and in fraud of the rights of others, and, therefore, will not be enforced “in a court of equity,” which was sustained, and the master reported accordingly. To this report plaintiffs excepted, and the case came before the honorable Ernest Gary, judge of the Fifth Circuit, who overruled all of the exceptions, and rendered judgment confirming the report of the master. In his order rendering this judgment his honor says: “At the hearing of the case, the plaintiffs asked leave to amend the complaint by striking from the fourth paragraph thereof the words, ‘numerous creditors,’ and inserting in lieu thereof the words ‘Ann C. Sally;’ and by adding to paragraph seven of the said complaint the words, ‘and said representations were made without any authority, and solely upon their own responsibility;’ this motion is refused, for the reason that there is nothing to amend, and even if allowed, the
Our first inquiry, obviously, is, what are the allegations of the complaint? That paper is too long for insertion here. We will, however, proceed to state, substantially, what we understand to be the facts therein stated, and the relief demanded.
First. That one John A. Sally departed this life some time in the year 1870, intestate, being seized and possessed, at the time of his death, of certain real estate described in the complaint.
Second. That prior to his death, said John Á. Sally confessed a judgment in favor of certain persons named, for the sum of ten thousand dollars, and that thereafter said judgment was duly assigned, for value, to Mrs. Ann O. Sally, the wife of the said John A. Sally, but whether this assignment was made before or after his death, does not distinctly appear, though we infer from the order in which the statements appear in the complaint, that it was before his death; but we may say that we do not see that this is material.
Third. The complaint sets forth the names of the heirs whom the said John A. Sally left surviving him, and goes on to state the names of those who succeeded to the estates of such of the heirs as have since died.
Fourth. In the fourth paragraph of the complaint the allegations-of the complaint are as follows: “That the said John A. Sally, at the time of his death, was largely indebted to numerous creditors and was totally insolvent, and his said heirs at law found that it was necessary after his death that all of his property, both real and personal, should be sold, and applied to, the payment and satisfaction of his debts and liabilities.”
Fifth. That on the day of A. D. 1871, the heirs at law of said John A. Sally held a meeting, “for the purpose of coming to an agreement in reference to the sale of the estates of the said John A. Sally, deceased; that it was then and there agreed, by and between the said heirs at law, including the
Sixth. That in accordance with the said agreement the said lands were sold, under said judgment, some time in the year 1871, and tracts Nos. 1,4, and 5 were bid in by the said J. George H. Sally, tract No. 2 by the plaintiff, R. Adeline Price, and tract No. 3 by J. Martin Sally, one of the defendants.
Seventh. The seventh paragraph of the complaint reads as follows: “That the said lands were bought in by the said parties as the agents and representatives of all of said heirs at law, acting under said agreement with them; that by reason thereof and by holding themselves out as representing and bidding for the widow and family under said agreement, they were enabled to bid off the property at a very low price, and very much less than its actual market value; that under said ágreement the said parties were not required to pay any portion of the purchase money bid for the said lands, and they did not pay any portion thereof, but took possession of said lands and continued to hold the same under the trusts imposed thereon, for the benefit and support of the said Ann C. Sally during her lifetime, rendering to her the rents, issues, and profits arising therefrom.”
Eighth. That the said Ann C. Sally departed this life, intestate, prior to the commencement of this action, leaving as her heirs at law and distributees the persons named in the complaint.
Tenth. That the defendant, J. Martin Sally, and the heirs at law of the said J. George H. Sally are in possession of said real estate, and wrongfully withhold the same from plaintiffs.
Eleventh. That certain of the defendants named in the complaint, are in possession of portions of said real estate, with full notice of the agreement hereinbefore set forth, and are supposed to claim interest in said portions.
Twelfth. “That the plaintiffs and defendants, the heirs at law of the said John A. Sally and Ann C. Sally, are tenants in common of the said real estate hereinbefore mentioned and described, and that they own no other lands as tenants in common in this State.”
Thirteenth. That certain of the defendants named in the complaint are minors.
Judgment is demanded as follows: 1st. That the said agreement between the heirs at law of the said John A. and Ann C. Sally be specifically performed. 2d. That the purchasers of the said land, under said judgment, be declared trustees of the same for the benefit of the said heirs at law. 3d. That said J. Martin Sally and the heirs of J. George EL Sally be required to account for the rents and profits of said land. áth. That the said real estate be partitioned among the several parties in interest, according to their respective interests therein, but if that be impracticable, then that the same be sold, and the proceeds divided amongst the several parties, according to their respective interests.
It seems to us, that the bare statement of such an agreement is quite sufficient, even without citing any authority, to show that a Court of .Equity would never lend its aid to the carrying out such a scheme, even amongst the parties to such agreement, for it would be subversive of every principle of equity and good conscience. But we are not left without authority upon the subject, as we shall presently show. The real purpose and actual effect of the agreement which the plaintiffs are seeking to enforce was to have the lands which constitute the subject-matter of this controversy sold under the Hartzog judgment and bought in for the benefit of those who, as we have said, had no legal interest therein, and this purpose was intended to be, and was, in fact, effected by that feature of the scheme allowing some of the heirs to bid in the property, under representations that they were bidding for the benefit of the family, whereby they obtained the property “at a very low price and very much less than its market value,” and what is more, were not to be required to pay, and did not, in fact, pay, even such “very low price.” No other construction can be placed upon the allegations contained in the seventh paragraph of the complaint, hereinabove distinctly set out. This was practically
As is said by Ld. Mansfield in Holman v. Johnson, 1 Cowp., 341: “The objection that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed, but it is founded in general principles of policy, which the defendant has the advantage of contrary to real justice as between him and the plaintiff, by accident, if I may so say. The principle of public policy is this: ex dolo malo non oritur actio. “No court will lend its aid
It is earnestly contended on the part of the appellants that the maxim, in pari delicto, &c., is not of universal application, but is subject to certain limitations; and 1 Pom. Eq. Jur., § 403, is cited to sustain such contention. It is true, that certain limitations to that maxim are there laid down by that distinguished author, but we are unable to see that this case falls under either of the limitations there laid down. In the first place, we do not see how it can be said that any of the parties to the illegal agreement upon which the plaintiff’s whole case rests, were not in equal fault; for while it is true that the said J. Martin Sally and J. George H. Sally were the parties who actually bid off the land, yet it is distinctly alleged that, in doing so, they were merely acting as the agent of all the heirs, under the terms of
We think it will be found that in the cases cited by appellants other elements entered which are absent in this. For example, in Clemens v. Clemens, supra, the plaintiff and defendant entered into an arrangement, instigated by defendant, whereby plaintiff, for the purpose of protecting his property against a suit then pending against him, was to convey to defendant, who was his son, a certain tract of land; but, by the fraud of the defendant, the conveyance was made so as to include another tract of land, which was protected by the homéstead law, and it was held that the conveyance should be set aside as to the tract included in the conveyance by defendant’s fraud, which was altogether outside of and not in any way dependent upon the agreement to defraud plaintiff’s creditors. So in Harper v. Harper, 85 Ky., 160 (7 Am. St. Rep., 583), the plaintiff, who was an aged lady, was induced, by the false representations of her son, in whom she had implicit confidence, to convey her property to the son, with a view to avoid the effect of a threatened suit for slander, which, however, was never
We do not think that the plaintiff’s case, as stated in their complaint, brings it within any of the limitations insisted upon by appellants, and hence we agree with the Circuit Judge, that the facts stated in the complaint are not- sufficient to constitute a cause of action.
Under this view it becomes unnecessary to consider the additional grounds relied upon by respondents to sustain the Circuit decree.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.
A motion was presented in this case, praying a recall of the remittitur, so that a petition for rehearing might be presented and considered.
The following ruling was announced
Thereupon a formal order, dated April 17,1895, was passed, refusing the motion.